Citation Nr: 1035826
Decision Date: 09/22/10 Archive Date: 09/28/10
DOCKET NO. 94-40 518 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUES
1. Entitlement to service connection for right great toe
disability.
2. Entitlement to an increased rating for a right knee
disability associated with bilateral pes planus/pes plano valgus
with bilateral ankle pain, plantar fasciitis, and tarsal tunnel
syndrome.
3. Entitlement to an increased rating for a left knee disability
associated with bilateral pes planus/pes plano valgus with
bilateral ankle pain, plantar fasciitis, and tarsal tunnel
syndrome.
(The remaining issues of entitlement to a rating in excess of 30
percent for chronic adjustment disorder with posttraumatic stress
disorder (PTSD), to include a separate compensable rating for
PTSD; entitlement to a rating in excess of 50 percent for
bilateral pes planus/pes plano valgus with bilateral ankle pain,
plantar fasciitis, and tarsal tunnel syndrome, to include
separate compensable ratings; entitlement to a rating in excess
of 40 percent for a lumbar spine disability; entitlement to
separate evaluations for functional loss secondary to pain and
nervous impairment involving the hips and low back; entitlement
to separate evaluations for functional loss secondary to pain and
nervous impairment involving the feet and ankles; entitlement to
extra-schedular evaluation pursuant to 38 C.F.R. § 3.321(b) for
service-connected disabilities; entitlement to an earlier
effective date for a compensable evaluation for
pseudofolliculitis barbae; entitlement to service connection for
traumatic arthritis of the hips and low back; entitlement to
service connection for traumatic arthritis of the ankles;
entitlement to service connection for psychiatric symptoms/pain
disorder due to psychological factors and general medical
condition; entitlement to special monthly compensation based on
the need for aid and attendance/housebound status; entitlement to
service connection for diabetes mellitus, type II; entitlement to
service connection for kidney stones; entitlement to service
connection for allergic rhinitis; entitlement to service
connection for prostate condition; entitlement to service
connection for polysubstance abuse will be the subject of
separate decision.)
REPRESENTATION
Veteran represented by: Mark R. Lippman, Attorney-at-Law
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
M.W. Kreindler, Counsel
INTRODUCTION
The Veteran served on active duty from June 1978 to December
1980.
This matter came to the Board of Veterans' Appeals (Board) from a
rating decision of a Department of Veterans Affairs (VA) Regional
Office (RO).
In August 1999, the Board denied, in pertinent part, entitlement
to service connection for right great toe disorder, and increased
ratings for right and left knee disabilities. The Veteran
appealed the decision to the United States Court of Appeals for
Veterans Claims (Court). In a March 2001 Order, the Court
vacated the August 1999 Board decision and remanded the matter to
the Board for development. In September 2001, the matters were
remanded for further development. In January 2008, the matters
were remanded to afford the Veteran the opportunity to have a
Board hearing.
REMAND
In correspondence dated in December 2007, the veteran requested a
hearing before a Veterans' Law Judge to be conducted via
videoconference at the local RO. Thought the claim was remanded
to afford the Veteran the opportunity for that hearing, no
hearing was scheduled.
It is a basic principle of veterans' law that the Board shall
decide an appeal only after affording the claimant an opportunity
for a hearing. 38 U.S.C.A. § 7104 (West 2002). Pursuant to 38
C.F.R. § 20.700 (2006), a hearing on appeal before the Board will
be granted if an appellant expresses a desire to appear in
person.
Accordingly, the case is REMANDED for the following action:
The RO should schedule the veteran for a
video conference hearing at the RO, with
appropriate notification to the veteran
and his attorney. After a video
conference hearing is conducted, or if the
veteran withdraws the hearing request or
fails to report for the scheduled hearing,
the claims file should be returned to the
Board for appellate review.
No action is required of the Veteran until he is notified by the
RO. The Veteran and his representative have the right to submit
additional evidence and argument on the matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the nature
of a preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(2009).
Department of Veterans Affairs